1987 P Cr (PLP)

Since I am a party to the above judgment and as it is binding on me being a D.B. Judgment, I am inclined to hold that in case where the High Court feels that a flaring miscarriage of justice has been committed by the trial Court, which revisional Court failed to rectify, it can invoke section 561‑A, Cr.P.C. which empowers the High Court., inter alia to prevent abuse of the process of the Court or otherwise to secure ends of justice. There was conflict of view among the High Courts on the above point, which has been resolved by the Hon'ble Supreme Court in the case of Muhammad Shafique and others v. Abdul Hayee and others reported in 1987 S C M R 1371 (July issue), in which following observations have been made. "The jurisdictional requirements for the exercise of powers under section 561‑A, Cr.P.C. are (i) To give effect to any order under the Criminal Procedure Code. (ii) To prevant abuse of process of any Court. (iii) To secure the ends of justice. Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. do not impinge, curtail, or limit in any manner whatsoever the powers under section 561‑A, Cr.P.C." If it is to be held in the instant case that flagrant injustice had been committed by the learned Magistrate, which the revisional Court failed to rectify, the above petition under section 561‑A, Cr.P.C. would be competent. It may be observed that filing of second application under section 517, Cr.P.C. and the second revision application by the petitioner referred to hereinabove was an abortive attempt on his part to get redress from the Courts below but the same were dismissed on account of the fact that his first application under section 517, Cr.P.C. and his first revision against the order of the Magistrate, were already dismissed. In my view, the above second order passed by the learned Magistrate and the learned Sessions Judge in revision are of no consequence. The most question, which requires consideration is as to whether the first impugned order dated 16‑10‑1978 and the first revisional judgment dated 29‑3‑1979 had resulted into any miscarriage of justice as to warrant the pressing into service section 561‑A, Cr.P.C. in the instant case. It is an admitted position on record that the articles were seized by the C.I.A. Police from the petitioner from his factory premises. They were handed over to the deceased complainant on receivership in pursuance of an order of the Illaqa Magistrate under section 517, Cr.P.C. against furnishing of security of Rs.50,

000. It is also an admitted position that the above articles were kept by the C.I.A. Police in three rooms of the petitioners factory which were sealed which fact was brought to the notice of the Illaqa Magistrate in terms of section 543, Cr.P.C. After the first discharge order dated 1‑11‑1972 the learned Magistrate ordered the delivery of the movable articles to the petitioner by his aforesaid order dated 12‑9‑1973 but the petitioner had not received the same for the reason already referred to hereinabove. After the remand of the case by the High Court and after his acquittal, his application under section 517, Cr.P.C. was denied on the ground that intricate question of title were involved. Mr. Aftab Akhund appearing as Amicus Curiae has referred to the following cases: (i) Muhammad Bakhsh v. Ashiq Hussain and others reported in PLD 1963 (W.P.) Lahore 467 in which the facts were that one Muhammad Bakhsh the petitioner was charged with under sections 447/457, P.P.C. on a complaint lodged by one Ashiq Hussain respondent. The Investigating Officer in order to make an inventory of the articles of the shop obtained permission from the Court to break open the lock of the shop in dispute which was allegedly placed by the petitioner, said Muhammad Bakhsh. After that the respondent filed an application praying therein, that the possession of the portion of the shop previously in occupation of Muhammad Bakhsh accused be given to him as prayed for. The case was decided 'in favour of Muhammad Bakhsh and he was acquitted. No charge was framed under section 447, P.P.C. against him by the learned Magistrate because no prima facie case was made out against him. After the above acquittal order. Muhammad Bakhsh presented an application to the trial Court for restoration of the possession of the property in dispute which was allowed. However, in appeal the learned Sessions Judge, Lyallpur vacated the above order of the learned Magistrate on the ground that section 517, Cr.P.C. was not applicable to immovable property. Against the above order a Revision was filed in the erstwhile High Court of West Pakistan, which was allowed by Mushtaq Hussain, J., (as he then was), and it was held that‑section 517, Cr.P.C. was applicable to al) sorts of properties, both movable and immovable. It was also held that sections 517 and 522 are to cater for two entirely different situations, whereas under the former only person claiming to be entitled to possession of property can ask for its delivery to him but under the latter person asking for restoration of property need not claim to be entitled to its possession, and the Court acting under the above section need not enter into the question of the right of possession of the person praying for restoration of property and that the mere fact that there had been forcible dispossession of the immovable property and that the person who dispossessed him has been convicted for that offence entitles him to the restoration of the possession. (ii) Makhdoom Hussain v. Dr. Wahid Ali reported in P L D 1961 (W.P.) Karachi 432. fn the above case a Division Bench of the erstwhile High Court of West Pakistan comprising of M.R. Kayani, C.J. and Khamisani, J held that the order of the Magistrate in breaking open the lock of a shop in possession of a tenant and giving possession to‑landlord on the assumption that tenant had not been heard of for 3 or 4 months was illegal and the tenant was entitled to the restoration of possession. It was also held that the order could be set aside under section 561‑A, Cr.P.C. and if it could be set aside then the ends of justice would require that the possession be delivered back to the tenant and section 561‑A, Cr.P.C. could be applied for that purpose. It was further held that the powers under section 561‑A, Cr.P.C. Is analogous to the powers exercised in issuing of a writ of certiorari, for the Magistrate either commits a patent illegality or acts entirely without jurisdiction. It was also held that it is not necessary that the Magistrate should purport to act as a Court.

6. On the other hand Mr. Qurban Ali Chohan learned counsel for the aforesaid three persons had referred to the following cases: (i) Ghulam Sadiq and another v. Mukhtar Ahmed and others reported in 1984 S C M R 1446, in which the Hon'ble Supreme Court declined to grant leave against the judgment of the Peshawar High Court, whereby it declined to quash the order of the Sessions Judge under sections 439‑A and 561‑A, Cr.P.C. whereby he suspended the interim order of the Magistrate on the ground that the dispute finally was adjudicatable by the Civil Court. (ii) Mian Munir Ahmad v. The State reported in 1985 S C M R

257. In the above case the Hon'ble Supreme Court held that the provisions of section 561‑A, Cr.P.C. apply to proceedings pending before any Court, whether subordinate to High Court or not, unless offence being tried is an offence under any law other than Pakistan Penal Code and power has been specifically taken away by any enactment relating to said Special Law. It was further held that though a party can approach to the trial Court under sections 249‑A and 265‑K, Cr.P.C. but there is nothing to bar the High Court from entertaining inappropriate case, an application under section 561‑A, Cr.P.C. In the above case criminal proceedings initiated against the Managing Director of the Factory under the Factories Act were quashed by the Hon'ble Supreme Court though the Sind High Court had declined to do so and the connected 13 appeals were allowed.

7. Mr. Riaz Ahmed appearing for the State has referred to the case of Mirza Abdul Razzaq v. Barkat Ali and others, reported in 1985 S C M R 1235, in which the facts were that the appellant purchased in auction a plot measuring nine Marlas and 183 square feet bearing Khasra No.8565 Uttam Nagar, Nawan Kot, Multan Road, Lahore from the Settlement Department against a PTD dated 7‑8‑1962. After serving statutory notice on the occupants he filed proceedings before the Rent Controller for seeking their ejectment. Rent Controller allowed the above application on 6‑9‑1965, which order was maintained by the Additional District Judge, by Judgment dated 9‑2‑1968 in appeal filed by the applicant. The above two orders were also maintained in the second appeal by the High Court. In execution of the above order for ejectment the occupants/ respondents were dispossessed from the plot and the possession thereof was handed over to the appellant. However, thereafter the appellant was dispossessed by the respondents forcibly, whereupon the appellant initiated proceedings under section 145, Cr.P.C. The Magistrate initially attached the property and proceeded to decide the question of possession and its restoration. He held that in execution of the decree, possession had been obtained by the appellants and that he had been forcibly dispossessed and within two months of his dispossession, he had moved the Magistrate for restoration of the possession. However, instead of directing the restoration of the possession the Magistrate gave a direction to the parties to seek remedy in the Court of competent jurisdiction so far as title is concerned. The appellant being aggrieved by the above order filed a Revision petition before the Sessions Judge, who reported the case the High Court ex parte against the respondents with a recommendation that the revision be accepted and the possession of the plot in dispute be ordered to be restored to the appellant. It appears that before the above reference could be heard a constitutional petition filed by the respondents against the transfer of the plot in favour of the appellant was allowed by the High Court. The Latters Patent Appeal filed against the above judgment was also dismissed. After that a learned Single Judge rejected the aforesaid reference made by the learned Sessions Judge for the restoration of the possession in favour of the appellant. The appellant being aggrieved by the above order filed a petition for leave against the above judgment pf the High Court, which was granted on the following question. "Whether the Magistrate was not under a statutory duty under subsection (6) ibid to order delivery of possession 'of the plot to the petitioner, regardless any defect in the petitioner's title. " After referring to the relevant case law, the Hon'ble Supreme Court was pleased to allow the above appeal and inter alia, observed as follows: "The finding ultimately, was that the Magistrate did not become functus officio after making the required declaration and even the succeeding Magistrate could grant the relief of restoration of possession. As regards the commission of the Magistrate initially to pass such an, order it was, ordered that 'it is not easy to understand why it should be presumed that the Magistrate, after holding that Jitendra had been wrongfully dispossessed within two months and that he was entitled to possession, yet declined to give effect to his finding and make a consequential order that possession must be restored to him. The order of 22‑5‑1951 shows nothing more than an omission to give certain further directions which the statute did not imperatively require the Magistrate to give at the time. By holding the jurisdiction was retained by the Magistrate till an order of restoration of possession was passed where the other requirements of the law were satisfied, itself suggest that such an order was a necessary adjunct of the proceeding and without it the proceedings did not finally come to an end and the Magistrate could not become functus officio losing seisin of the matter."

8. On the basis of the above cited judgments to following principles of law can be deduced: (i) That the word 'property' employed in section 517, Cr.P.C. will include immovable and movable property. (ii) That the powers contained in section 561‑A, Cr.P.C. are similar to the powers relatable to a writ of certiorari. (iii) That under section 561‑A, Cr.P.C. the High Court may set aside an illegal order of handing over possession of a rented premises by a Magistrate to the landlord without the consent or knowledge of the tenant as there is no other specific provision in the Criminal Procedure Code. (iv) That if the High Court can set aside the order of handing over of the possession of the rented premises by a Magistrate to the landlord, the High Court can, under section 561‑A, Cr.P.C. also restore the possession. (v) That the Court may decline to restore the possession of an immovable property when the dispute is adjudicatable by a Civil Court. (vi). That Magistrate does not become functus officio in a proceeding under section 145, Cr.P.C. after having declared that the applicant was forcibly dispossessed within two months of the moving of the application for the restoration of possession but he or his successor retains the jurisdiction to grant further relief for the restoration of possession.

9. In the instant case the learned FCM had denied the petitioner the possession of the movable articles on the ground that the case was not decided on merits as no evidence was recorded and the intricate questions of title were involved. It may be observed that the deceased complainant in spite of the remand order by the High Court had not produced any evidence despite lapse of considerable time, the learned Magistrate had recorded the acquittal order under section 249‑A, Cr.P.C. without touching upon the merits of the allegations and, therefore, it can be urged that there was no decision on merits on the question, whether any offence in respect of the movable articles in question was committed. One view can be that unless an enquiry or a trial is concluded on merits as to the Commission of the offence, section 517, Cr.P.C. cannot be invoked. I am inclined to hold that the other view (to which I am inclined to subscribe) can be that if a trial Court entrust the custody of the property involved in the offence to one of the parties as a receiver of Supardaginama, it has to decide the question to whom the property is to be restored even in case of acquittal under section 249‑A, Cr. P. C. , and for that both the parties are to be provided opportunity to lead evidence: If the Court upon recording of the evidence finds that it is difficult to decide the question of restoration of possession, it may then ask the parties to approach the Civil Court but the property cannot be allowed to remain in the custody of the party, who was not in possession of the same prior to the initiation of the proceedings and the same was taken out of the custody of the other party who was accused of the offence and who have been acquitted. Generally the possession of the property is to be restored to the person, who was deprived of the possession on account of initiation of criminal proceedings, except in case of theft or robbery or breach of trust or other similar cases and where prima facie there is some material to indicate the truthfulness of the above allegations, though there might have not been sufficient evidence to record conviction. It may also be pointed out that even in case of seizure of any property by any police officer in respect of which it was alleged or it was suspected to have been stolen or found under circumstances which create suspicion to the commission of any offence, the police officer is required to report the seizure forthwith in terms of section 423, Cr.P.C. to a Magistrate who is empowered to make such order as he thinks fit respecting the disposal of the said property. Subsection 2 of section 523 and section 524, Cr.P.C. provide the procedure where the owner of property seized is untraceable. In the instant case originally the movable articles were seized by the CIA Police and the matter was reported to the Magistrate and, therefore, even if it is to be held that section 517, Cr.P.C. was not attracted to, the learned FCM was bound to hold an enquiry in terms of the above section 523, Cr.P.C.

10. As regards the factory premises, it may be observed that the factual position is that the factory premises were not the subject‑matter of the aforesaid criminal complaint. However, the case of the petitioner is that the police had kept the aforesaid seized articles in three rooms of his factory under seal and had posted the guard and thereby deprived him the possession of the factory. The above factum was reported to the Illaqa Magistrate in the report submitted by the police and it was stated as pointed out hereinabove that as there was no Government Malkhana, the seized articles were being kept in three petitioner's factory's rooms and were sealed and the guard was posted. It appears that the petitioner since then was unable to obtain the possession of the factory. The factory premises are longer available. The deceased /complainant and/or his successor had disposed of the factory premises in favour of the aforesaid persons by selling debris through sale agreements, Mr. Chohan learned counsel for the respondents has produced the alleged sale agreements in favour of the two out of the above four persons whereby they had purchased the debris on the plot. It was contended by Mr. Chohan that factually the identity of the property has not been established. If the petitioner was deprived of the possession of the above factory premises on account of acts of commission on the part of the Magistrate during the pendency of the above criminal case, he may seek the restoration of the possession as no party can be prejudiced by an act of omission of the Court. In this behalf reference may be made to a passage on the maxim "Actus Curiae Neminem Gravabit" from Broom's Legal Maxims, Tenth Edition and also to the following cases: "(i) ACTUS CURIAE NEMINEM GRAVABIT. (Jenk. Cent. 118).‑‑An act of the Court shall prejudice no man. This maxim 'is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law' (b). In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case (c); and, therefore, if one party to an action die during a curia advisari vult, judgment may be entered nune pro tune, for the delay in the act of the Court, for which neither party should suffer (d)." (ii) Paul Williams and another v. Hafiz Nasir Ali reported in PLD 1960 (W.P.) Karachi 174, in which while accepting a Revision against an ex parte decree, a learned Single Judge of erstwhile High Court of West Pakistan has held that the defendant was entitled to notice of an application for setting aside dismissal of the suit and since no such notice was given by the Court, a party should not suffer by act of Court. (iii) Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others reported in P L D 1975 Lah.

7. In the above case a learned Single Judge of the Lahore High Court while dealing with the settlement case referred to the maxim actus curiae neminem gravabit and held that the above principle was applicable to quasi‑judicial tribunals e.g. settlement authorities. ' (iv) Fazal Haq v. The State, reported in P L D 1982 Lahore 452, .in which a Division Bench of the Lahore High Court held that under section 561‑A read with sections 369 and 35, Cr.P.C. a High Court has inherent power to give effect to the maxim that nobody should suffer for acts and omission of Court, the Court can invoke section 561‑A." It may be stated that even the movable articles are not traceable. The complainant has already expired as stated hereinabove. The above articles were given under the receivership to the deceased complainant on execution of security bond of Rs.50,000 and, therefore, if the Court is to hold that the petitioner was entitled to the possession of the above articles, he would be entitled to receive the value of the articles which is to be realized against the security bond which is not available on record and may be with the trial Court.

11. I am inclined to hold that the above order dated 16‑10‑1978 passed by the learned Civil Judge and FCM declining the petitioner the possession of the movable articles on the ground contained therein, under section 517, Cr.P.C. and the revisional order dated 29‑3‑19791 passed by the learned III Additional Sessions Judge, Hyderabad, maintaining the above order of the learned FCM have resulted into miscarriage of justice warranting interference by this Court under section 561‑A, Cr.P.C. The subsequent two orders referred to as pointed out hereinabove are of no consequence, as they were passed on the basis of the aforesaid the earlier orders. I would, therefore, quash the above two orders and the subsequent two orders dated 15‑9‑1981 and 7‑12‑1981 and would remand the case to the learned 1st Extra Joint Civil Judge and FCM Hyderabad. I with the direction to pass fresh order on the petitioner's application under section 517, Cr.P.C. for the restoration of the possession of the seized movable articles in terms of the observations contained hereinabove. He is also directed to hold enquiry on the following questions, after notice to the parties including to the four persons named hereinabove. (i) Whether the petitioner was deprived of the possession of his factory premises on account of acts and/or omissions on the part of the learned Magistrate; (ii) Whether the aforesaid four persons, namely, Ghulam Sarwar, Salahuddin, Abdul Razzaq and Bakhar or any one or more of the mare in fact in possession of the premises/land or part thereof in/on which the petitioner's factory existed at the time of sealing of the seized articles therein. If the answer of the above two questions are in the affirmative', the petitioner may be restored with the possession of the premises/land to the extent, which he was deprived of and which is found' in possession of the above four persons or any one or more of them. The learned FCM should dispose of the above application within six months from the date of receipt of a copy of this judgment. The office is directed to return R & P within a week.

12. Before parting with the above discussion, I may record thanks for the valuable assistance rendered by Mr. Aftab Akhund Advocate, who has appeared as Amicus Curiae. M.Y.H./50/H‑K?????????????????????????????????????????????????????????????????????????????????? Case remanded.